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When it comes to getting a divorce in North Carolina, there’s one big catch: you can only file after living separately and apart from your spouse for one year. So, when you’re finally ready to file, what are the disadvantages of filing for divorce first? And why might you want to wait? This blog post will look at both sides of the issue and help you make the best decision for yourself and your family.

Divorce Proceedings in North Carolina

You can start a filing for divorce papers after living separately from your spouse for one year. Anytime after the one-year separation period, either spouse of you may file for divorce.

However, there are no surprises when one of you files for divorce if you’ve been living apart for that long.

In some states, you can file for divorce without a separation period. The element of surprise can make a difference since you can prepare financially and ensure accountability for your marital assets before filing the papers.

However, in North Carolina, by the time you make it to the one-year mark, you may have worked out some type of separation agreement with your spouse, whether written or verbal.

If you haven’t found agreement on the issues, you need an attorney to help you through the divorce proceedings, whether you file first or not. A law firm focusing on family law can bring you the expertise you need to receive the best outcome.

Couples who’ve legally separated for a year and have worked out all issues have an advantage because they can file a divorce petition for an uncontested proceeding.

Separation: The Element of Surprise in the Divorce Process

Before you move out or ask your spouse to leave, you’ll probably have a conversation with your spouse about what is happening. Working with an attorney before you ask for a separation can help you have an advantage.

If you’ve already thought through the divorce process before starting your separation, you’ll have answers that your spouse has not even begun to consider. You’ll be aware of the issues and how you want to sort everything out while your spouse still feels dumbfounded.

If you want to have the element of surprise, find an excellent divorce lawyer and gain the advantage of knowledge. You can work out issues with your spouse amicably with your attorney if you choose. Working with your spouse for equitable distribution of assets and a fair resolution to your relationship can be a huge advantage!

And your family law attorney can help you see which issues you’ll need to discuss with your spouse and what your marital rights are in each situation!

Issues you will need to consider before filing for divorce include:

  • Child custody
  • Alimony
  • Child visitation
  • Child support
  • Equitable distribution of assets
  • Any other contentious issues

A Written Separation Agreement Prepares You to File For Divorce

Working with an attorney to write your separation agreement with your spouse lets you be the initiating party, getting the divorce process started.

So, if your spouse wants to fight you about alimony, you can work with your family law divorce attorney to file for a temporary form of alimony (NCGS 50-16.2A). 

Your spouse may owe you post-separation support, and if the court rules for you, you may receive payments during the period of separation until the court rules in your divorce proceedings.

If you file the divorce papers first, you’ll likely know exactly how much support to ask for from the court for your divorce since you prepared ahead of time.

Disadvantages of Filing for Divorce First

The disadvantages of filing first are that you:

  • Pay the filing fees of around $225
  • May pay more legal fees since your attorney may need to dig in more and discover financial or other items for you to file divorce papers first.
  • Tip your hand that you’re ready for a divorce
  • Show your side of the story in writing first. You can’t take back a filing; if it’s harsh and unfair, the court may not see you in a good light.

If your filing is not fair to your spouse or children, filing first can make it seem like you’re trying to deprive your spouse of custody or visitation. Unless you suffered living with an abusive spouse and can prove it, you don’t have a reason to deny your spouse and children a fair split. You don’t want the court to think you want more than what is reasonable, and you don’t want to start alimony or custody battles.

The court may rule that the custodial parent must pay child support to the non-custodial parent. When you file for divorce first and are overly demanding, it may appear as if you’re trying to beat the system. You don’t want to look like you’re trying to avoid paying fair amounts for child or spousal support or like you want more consideration than would be fair.

Causing a custody battle by filing inappropriately will not make a family court want to take your side.

Find Legal Counsel Before Filing

The professional advice of an experienced family law attorney can help you file first in a way that shows you want to do what is fair. Understanding how the court will view your filing is crucial for filing first.

If you file divorce papers considering the others in your family, you’re likely to receive your best outcome (even if you file first).

Filing for divorce is a big decision, and it’s not wise to take it lightly. The filing fee alone is enough to make some individuals hesitate! Be sure to consult an attorney to get all the facts before deciding how to proceed.

Advantages of Filing for Divorce First

Filing first means that you write out the terms of the divorce. If you and your spouse agree on everything, then your spouse will sign the papers, and you will receive an uncontested divorce.

However, in the example above, let’s say you receive your spouse’s divorce filing, and they refused to include alimony. You think you deserve maintenance, so you refuse to sign the divorce papers.

When you haven’t worked out your marital divorce issues before one spouse files for divorce, the court will work them out for you. Contesting the divorce papers of the spouse who files first means that you won’t accept the divorce with the agreement as is.

If you file second, you will contest your spouse’s reasons for not wanting to pay alimony. Filing second means your story is a rebuttal to your ex’s story. If you’d rather play offense and tell your story first, filing first is a good idea.

If you can’t agree on the first filing, you can file a regular petition for dissolution of marriage and appear before the court until you’ve worked through every issue of your divorce.

Make the Best Decision For You and Your Family

In your divorce case, it may be best to file first, or it may be best to wait for your spouse to file. It all depends on your marriage situation and what is going on in your life.

For example, you may wait to see what happens if you don’t want a divorce. Perhaps your spouse won’t file for divorce. You know your marriage better than anyone else, so only you can decide what is best for you and your family.

We Can Help

If you have any questions about filing for divorce in North Carolina, please contact us at Plekan Law. We can help you understand the divorce process and what to expect every step of the way. Divorce is tough – don’t face it alone.

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